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[2009] ZALCD 4
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Independent Newspapers (Pty) Ltd t/a Independent Newspapers KwaZulu-Natal v Statutory Council for the Printing, Newspaper & Packaging Industries and Others (D161/08) [2009] ZALCD 4 (4 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO: D161/08
NOT REPORTABLE
In
the matter between:
INDEPENDENT
NEWSPAPERS (PTY) LTD trading as
INDEPENDENT
NEWSPAPERS KWAZULU-NATAL
Applicant
And
STATUTORY
COUNCIL FOR THE PRINTING,
NEWSPAPER
& PACKAGING
INDUSTRIES First
Respondent
B
MNGOMA
N.O. Second
Respondent
SKHUMBUZO
MIYA
Third
Respondent
JUDGMENT
Conradie
AJ
Introduction
1.
This is a review application in terms of
section 145
of the
Labour
Relations Act 66 of 1995
in which the Applicant seeks to review and
set aside the award of the Second Respondent dated 23 January 2008.
Background
2.
The following facts can be regarded as common cause in this matter:
2.1
The Third Respondent was appointed as a news editor for one of the
Applicant’s publications
with effect of June 2006.
2.2
According to the Applicant the functions of a news editor are,
inter
alia,
to ensure that articles put forward for publication are
accurate, factually correct and authentic. In other words the news
editor
is responsible for the content of the news articles.
2.3
The Third Respondent is an experienced journalist. His qualifications
and working background
date back to 1987. Since this time Third
Respondent has held the position of journalist for several
newspapers. He has also served
as an editor, consulting editor and
editorial director of various publications.
2.4
The daily routine of a daily newspaper publication and in particular
at the Applicant’s
publication where the Third Respondent
worked is that there is an editorial planning team which meets three
times a day. The first
meeting takes place at the start of the
working day, the second at lunchtime and the final one at
approximately 17h00. On each
occasion the editorial content mix for
the next day’s publication is discussed and assessed. At the
last meeting final decisions
are made as to the headline story and
articles that are to be published. The primary concern of the
committee is to assess the
newsworthiness and mix of stories.
2.5
The editor, although he is obviously in overall charge and
consequently accepts responsibility
for the publication, places a
heavy reliance on his news editor in respect of accuracy and factual
content of articles. The editor
must be able to rely on the
professionalism, expertise and experience of his staff and in
particular senior staff.
2.6
The Third Respondent was the journalist responsible for the story
relating to a woman giving
birth to twelve children, a story which
proved to be untrue.
2.7
As a result of the untrue story the Applicant charged the Third
Respondent with misconduct
as follows:
“
1.
GROSS MISCONDUCT
in that you breached your contract of
employment by publishing a fictitious story titled “Woman dies
after giving birth to
12 babies” on Thursday, August 16, 2007
in Isolezwe; and
2.
GROSS MISCONDUCT
by publishing a fictitious story, you misled
the public thereby bringing Isolezwe into disrepute.”
3.
The Third Respondent was dismissed for misconduct following which he
referred a dispute to the First Respondent. The referral
documents
reflect that the dismissal was for misconduct.
4.
It is apparent from his award that the Second Respondent accepts that
the Applicant was dismissed for misconduct.
5.
The Applicant’s evidence at the arbitration was to the effect
that the dismissal was for misconduct. The main witness for
the
Applicant testified that the Third Respondent was negligent and acted
in breach of his contract of employment.
6.
In the circumstances the Second Respondent was required to adjudicate
an alleged unfair dismissal for misconduct. The parties
in presenting
their cases addressed the matter on that basis and as referred to
above there was agreement that procedural fairness
on the basis of
misconduct was not in issue
7.
The Applicant alleges that in dealing with the matter the Second
Respondent misdirected himself on two major issues and they
are:-
7.1 He makes the
statement in paragraph 47 at paragraph 24 of the papers that “
I
agree that arbitration proceeding is a de novo hearing and as such
I am not necessarily bound by how the original charge sheet looked
like.”
The Applicant submitted that although an arbitration
hearing is manifestly a “
de novo”
hearing the
Second Respondent was very much bound by what the charge sheet looked
like as the cause of action reflected in the
charge sheet was the
whole basis upon which the disciplinary enquiry was dealt with and
upon which the Second Respondent must now
deal with the matter.
7.2 The Second
Respondent further stated that he was satisfied that the dismissal
was not for misconduct but incapacity and
then proceeds to deal with
the matter on that basis. In presenting their case neither the
representatives of the Applicant or the
Third Respondent contemplated
that the dismissal was an incapacity one or presented their evidence
on that basis.
8.
By approaching the matter on the basis of an incapacity dismissal as
opposed to one for misconduct and using this reasoning to
conclude
that the dismissal was unfair, the Second Respondent came to a
decision which a reasonable decision maker could not have
reached.
9.
The irregularity of the Second Respondent’s reasoning in
this matter is further highlighted by his rejection of the
Applicant’s
evidence of similar cases where employees were
dismissed for putting forward a fictitious story in the one instance
and bringing
the newspaper into disrepute in the other. In this
regard the Second Respondent’s reasoning that the Third
Respondent’s
case was distinguishable from a former employee on
the basis that the former employee had direct access to a source
which gave
information about his employer as opposed to the Third
Respondent who worked through a third party, lacks all logic. If
anything,
where the information is being sourced from a third party
more care should be taken to ensure its authenticity than is the case
where the information is coming straight from the “
horse’s
mouth so to speak.”
10.
In the circumstances I conclude that the Second Respondent came to a
conclusion which a reasonable decision maker could not
reach.
11.
As a result I make the following order:
1. The
decision of the Second Respondent is reviewed and set aside.
2. The
dispute is referred back to the First Respondent for determination by
a commissioner other than the Second
Respondent.
3. No
order as to costs.
___________
Conradie
AJ
Date:
4 December 2009
Appearances:
For
the Applicant:
RCW Pemberton – Garlicke and Bousefield
For
the Respondent: Meshack Zweni – Union
Official